COVID-19: Your updated 2020 HR to-do list

If you have furloughed employees and are relying on grants being made available under the CJRS you will need to consider:

• How long employees will remain furloughed, given the extension of the CJRS until 31 October 2020 and the tapering of contributions from 1 August 2020
• Whether you will ask employees to return to work part-time (whilst still on furlough) once it becomes permissible to do so from 1 July 2020.

Read our blog for more information on the revised CJRS.

More information on furlough, and ending furlough, is on our Brodies Workbox Coronavirus pages, which are free to view for all.

You have a duty to protect the health, safety and welfare of homeworkers so far as is reasonably practicable.

If you have staff working from home, you must consider regularly what action you need to take to satisfy your health and safety obligations.

It may be appropriate to introduce a homeworking policy which sets out the arrangements that apply to individuals working from home, covering, for example, insurance, equipment, expenses and data security. If homeworking is only a temporary measure, a temporary homeworking policy may be more appropriate.

More information on homeworking is on Brodies Workbox: Coronavirus: FAQs for employers.

The Working Time Regulations 1998 have been amended so that workers are now entitled to carry forward up to 4 weeks of their statutory holiday entitlement into the next two holiday years immediately following the holiday year in which it was due if it was “not reasonably practicable” for them to take holiday “as a result of the effects of coronavirus (including on the worker, the employer or the wider economy or society)”. Government guidance sets out various factors to consider when determining what is “reasonably practicable”.

Requiring annual leave to be taken during furlough period

Government guidance suggests that you can require workers to take annual leave while furloughed, provided you give the required period of notice. However, the guidance also notes that you should “consider whether any restrictions the worker is under, such as the need to socially distance or self-isolate, would prevent the worker from resting, relaxing and enjoying leisure time, which is the fundamental purpose of holiday.” We expect this to be an area of future legal challenge.

More information on managing annual leave in light of Coronavirus is on Brodies Workbox: Coronavirus: FAQs for employers.

The HR and employment law considerations will include:

• Engaging with health and safety representatives about the proposed return to work plan (holding elections if no such representatives are in place already) and genuinely consulting about the measures to be adopted to ensure health and safety in the workplace
• Supporting managers to undertake processes to select which colleagues will return to the workplace first
• Managing colleagues who are unwilling to return to the workplace when requested to do so
• Managing requests from employees who wish to return to the workplace but have not been asked to do so
• Introducing new processes where testing is to be undertaken, ensuring the data protection considerations are reflected (more information on this is in our Data Protection Team’s blog)
• Ensuring appropriate training is delivered.

In developing a plan for employees returning to the workplace, HR teams will likely work alongside colleagues from the Compliance, Health & Safety and Legal functions.

For more on planning a return to the workplace, see our FAQs: Health & safety for workplaces that are open, or planning to reopen.

You may have to make fundamental changes to your workforce including:

• Changing terms and conditions of employment
• Undertaking redundancy exercises as a result of site closures or reduction in work levels
• Restructuring the workforce as a whole or at least some of the teams/departments
• Outsourcing services to a third-party service provider.

Any process which may result in the termination of employment must be fair and transparent in order to manage the risk of legal challenge.

Collective consultation obligations (requiring 30 or 45 days of consultation depending on the numbers involved) may be triggered in the context of redundancy and restructuring exercises but also as a result of a proposal to change terms and conditions of employment.

Consultation obligations will also arise in the context of any TUPE transfers.

Employees who have been able to work remotely and/or with adjusted working hours may well seek to make these arrangements permanent post-crisis.

You can only refuse a request for flexible working if one of the statutory prescribed business reasons applies. You will need to consider requests in light of the arrangements that have been in place during lockdown.

An increase in grievances, whistleblowing and health & safety complaints should be anticipated.

You may want to handle health & safety complaints outside of any existing procedures for dealing with grievances and whistleblowing disclosures, given that you will want to close out such concerns as quickly as possible. You could adopt a separate process for health & safety complaints and communicate this to the workforce as part of your ‘return to the workplace’ consultation process. We would advise refresher training for HR teams and line managers who will be involved in dealing with complaints of this nature.

Individuals who make health & safety complaints and/or blow the whistle may be able to bring claims in the Employment Tribunal if they experience detrimental treatment and/or are dismissed as a result of their actions.

In certain types of automatically unfair dismissal cases, including whistleblowing claims and claims related to activities as a health and safety or collective redundancy representative, a tribunal can grant an employee ‘interim relief’ i.e. order that you continue employing the employee or paying their salary, until the case is determined. These cases are generally rare, but we may see more of them in the coming months.

The time limits for responding to an Employment Tribunal claim have not been extended as a result of the Coronavirus pandemic, notwithstanding the fact that many businesses have been ordered to close. The normal procedure for seeking an extension will continue to apply.

Trade unions have been very vocal already around the health & safety of their members, the use of the CJRS and the protection of member jobs post-crisis. Engaging with union representatives at an early stage will be crucial.

In a non-unionised workplace, it may be beneficial to introduce a workplace forum/consultation committee if one does not exist already.

You will want to ensure that all relevant policies have been updated to reflect any new arrangements or working practices, and that new policies have been introduced as necessary.

For example, you may need to amend disciplinary and grievance policies to include a section explaining the process that will be adopted where hearings are to take place via video conferencing.

Employers will want to continue to encourage EU nationals and their family members to apply through the EU settlement scheme well in advance of the cut-off date (June 2021). This is to avoid any illegal working issues that could arise if there are problems with an application after that cut-off date. Applying early leaves time to rectify any issues before the EU national’s current right to work expires.

Employees who may be outside the UK during lockdown/due to COVID-19 should take advice on whether their absence from the UK might impact their ability to get settled status in the future – cumulative absences of 6 months or more over the course of a year could be problematic.

Employers who do not already have a sponsor licence are likely to need one if they employ either medium or highly-skilled jobs. EU nationals coming to the UK from 1 January 2021 will require sponsorship by a licenced employer. We recommend that employers apply no later than the summer of 2020 as there may be delays in processing times for a licence. To find out more read our blog: Top 6 tips for applying for a sponsor licence.